V.H.Suresh vs The State Of Kerala
2021 Latest Caselaw 7887 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

     MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                         CRL.A.No.952 OF 2011

 AGAINST THE JUDGMENT DATED 03.06.2011 IN SC 386/2006 IN THE FILE
       OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)I, KALPETTA


    APPELLANT/ACCUSED:

             V.H.SURESH
             AGED 31 YEARS,
             S/O. HARIDASAN,
             RESIDING AT VELLATTIL VEEDU,
             VENDOLA BAGAM,
             CHEERAL POST
             S.BATTERY,
             PIN - 673 592

             BY ADVS.
             SHRI.A.V.JAMES
             SRI.M.J.ABRAHAM
             SRI.P.DALBI EMMANUEL

    RESPONDENT/COMPLAINANT:

             THE STATE OF KERALA
             REP. BY THE SULTHAN BATHERY EXCISE CIRCLE INSPECTOR,
             REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM


             BY SRI. M.S.BREEZ, SENIOR PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2021,
THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No. 952 of 2011          2




                                 JUDGMENT

The convict in S.C. No. 386/2006 of Sessions Division, Kalpetta

challenges his conviction under Section 8(1) and (2) of the Abkari Act,

and sentenced to undergo simple imprisonment for four years and to

pay fine of Rs.1,00,000/-, in default simple imprisonment for two

years. The case had originated on a final report laid by the Excise

Inspector, Sulthan Bathery in Crime No. 46/2005 of Bathery Excise

Range.

2. The precise allegation is that on 11.07.2005, at 5.45 p.m.,

the Preventive Officer, Excise Enforcement and Anti Narcotic Special

Squad, Wayanad and party, while engaged in usual patrol duty, found

the appellant on the Ponnakam paddy land area, on the road leading to

Nambiarkunnu from Vendol in Cheeral village in Sulthan Bathery

taluk, carrying six litres of arrack in a can having capacity of 10 litres.

He was arrested from the spot, the contraband was seized under a

mahazar prepared in the presence of independent witnesses and the

material papers were handed over to the Excise Range Office and the

said crime was registered. The accused was produced along with the

contraband before the court on the following day itself. On conclusion

of investigation, the charge sheet was laid before the Judicial First

Class Magistrate, Sulthan Bathery where the case was taken on file as

C.P. No.93/2006 under Section 8(1) and (2) of the Abkari Act. After

completing procedural formalities, the case was committed to the

Sessions Court, Kalpetta from where it was made over to the

Additional Sessions Court (Adhoc) I, Kalpetta.

3. After hearing counsel on both sides, the learned Additional

Sessions Judge framed a charge alleging offence under Section 8(1)

and (2) of the Abkari Act, read over and explained in Malayalam to

which the appellant pleaded not guilty. He was on bail. He was

defended by a counsel of his choice.

4. The prosecution evidence consists of oral testimony of

PWs 1 to 7 besides documents marked as Exts. P1 to P7. Material

objects were identified and marked as MOs 1 and 2. On conclusion of

evidence, when examined under Section 313(1)(b) of the Code of

Criminal Procedure, hereinafter referred to as the Cr.P.C., the

appellant denied all the incriminating materials and reiterated his

innocence. As it was not a fit case for acquittal under Section 232 of

the Cr.P.C., the appellant was called upon to enter on his evidence in

defence. However, no evidence was adduced by him. After hearing

counsel on both sides, the learned Additional Sessions Judge repelled

his plea of innocence, found him guilty and imposed a sentence as

afore stated. That finding is under challenge in this appeal preferred

under Section 374(2) of the Cr.P.C.

5. I heard the learned counsel for the appellant and also the

learned Senior Public Prosecutor. The trial court records were also

verified.

6. The learned counsel for the appellant submitted that the

trial court was not justified in placing implicit reliance on the

testimony of PWs 6 and 7, Excise Officials; from the oral testimony

of PWs 3 and 4 independent witnesses, it is quite evident that they

were not witnesses to the detection or recovery of the contraband from

the appellant; they were called to the place at the time of preparation

of the mahazar, which will not satisfy the statutory requirement.

According to the learned counsel, the alleged place of occurrence is a

place where there is a view of 200 meters from either side. If it was a

genuine case, there was no difficulty for the appellant to run away

from the place seeing the department vehicle at a distance of 200

meters. No independent witness had seen the appellant in possession

of the contraband or running after abandoning the item. Therefore, it is

quite unsafe to proceed against the appellant based on the

uncorroborated oral evidence of PWs 6 and 7. The learned counsel

also found it unusual that after the alleged detection, the officials had

gone to a far of place at Meenangadi; surpassing the nearby Excise

Office at Sulthan Bathery, which only indicates that the Ext.P5

mahazar and connected documents might not have been prepared

instantly at the alleged spot of occurrence, but in the office at

Meenangadi. The learned counsel concluded that it is a false

implication by concocting evidence, with the help of some abandoned

contraband. According to him, the prosecution could not establish

nexus between the contraband and the complicity of the appellant and

therefore, he is entitled to be acquitted. The learned counsel also

pleaded, alternatively for taking a lenient view, since the incident had

happened on 11.07.2005, more than 15 years back.

7. On the other hand, the learned Public Prosecutor

supported the conviction and sentence imposed on the appellant.

8. PW6 is the detecting officer. He is the Preventive Officer

attached to the Excise Enforcement and Anti Narcotic Special Squad.

He has given a version supporting the charge. According to him, that

day himself and party were engaged in routine patrol duty; while

moving through the said road, they saw a person at a distance of 30

meters standing on the side of the road, near the bridge carrying a

jerry can of about ten litres capacity; seeing the official vehicle, after

abandoning the can held by him, he took to his heels to the paddy land

on the east; after making the Excise Guard, Anilkumar to stand guard

to the contraband, other members of the party chased the person and

apprehended him from a distance within 50 meters, brought him back

to the place where he stood and the content of the can was tested by

tasting and smelling and found that it is arrack. According to him, the

item was seized and Ext. P5 mahazar was prepared in the presence of

independent witnesses, the appellant was arrested after preparing the

arrest notice; on the same evening, the contraband and the appellant

were handed over to the Excise Range Office, where the crime was

registered. PW7 K.V. Vijayakumar, the Excise Guard who

accompanied PW6 also gave a similar version. The testimony of both

the witnesses could not be shaken in cross examination.

9. PW3 Sukumaran and PW4 Oanan are independent

witnesses who attested the seizure mahazar and the arrest memo. Both

of them identified their signatures on the documents, but denied

having witnessed the detection and arrest of the appellant. Both of

them have turned hostile to the prosecution and were cross examined

by the Public Prosecutor.

10. Other witnesses do not have material role in the proof of

the charge. PW1 is the Excise Circle Inspector, who took the list of

property, documents and the accused to the court on the following day,

i.e., on 12.07.2005. He also prepared the Ext. P2 forwarding note.

PW2 is the Excise Inspector who conducted the investigation,

prepared the Ext.P3 scene mahazar and laid the charge sheet. He also

proved the chemical examination report which suggests that the

contraband is arrack. PW5 is the Preventive Officer, who registered

the crime.

11. The credibility of the prosecution case depends largely on

the reliability of PWs 6 and 7, the detecting officer and the Excise

Guard who accompanied him. The learned Additional Sessions Judge

after analysing the oral as well as documentary evidence came to the

conclusion that there is absolutely nothing to disbelieve their version.

In fact that is the strength of the prosecution case. Even though the

learned counsel for the appellant is skeptical about their credibility,

nothing has been attributed to doubt their veracity. They had come

across such an incident during the course of official discharge of

functions. No one has a case that they had any previous acquaintance

with the appellant and for that reason no motive could be attributed

against them for concocting a serious criminal case against him. Of

course, independent witnesses have not supported that part of the

prosecution case which indicates that seeing the Excise party, the

appellant had run away from the place abandoning the contraband on

the side of the road. But in my assessment, the learned Additional

Sessions Judge cannot be found fault with for placing reliance on the

testimony of PWs 6 and 7 on material aspects.

12. Secondly, the contemporaneous documents like Ext. P5

seizure mahazar and Ext.P6 arrest memo have to be read along with

the testimony of PWs 6 and 7.Even though PWs 3 and 4 were declared

hostile to the prosecution, they have partly supported the testimony of

PWs 6 and 7 by admitting their signatures on material documents.

That part of their evidence clearly suggest that those are

contemporaneous documents prepared by the officials.

13. After going through the materials including the testimony

of witnesses, this Court also find it difficult to discard the version

given by PWs 6 and 7, official witnesses which clearly indicate that

the appellant had run away from the place seeing the Excise officials

after abandoning the item on the road. In fact, it is a matter for

drawing adverse inference against the appellant. The items were

seized from the place itself and were produced before court, at the

earliest possible opportunity. The material objects were produced

before the court on the following day itself, along with the forwarding

note which shows the promptitude in which the officials had acted.

The chemical examination report suggests that the item contained

24.01% by volume of ethyl alcohol which is arrack attracting the

offence punishable under Section 8(2) of the Abkari Act.

14. After revisiting the evidence, no blemish can be spelt out

against the judgment of the trial court that the appellant is guilty under

Section 8(1), punishable under Section 8(2) of the Abkari Act. He has

been rightly convicted for the offence. The conviction is only to be

confirmed.

15. Turning to the sentence, as pointed out by the learned

counsel, the incident had happened way back in 2005 and due to the

institutional lapses, finality could not be attained even after 15 years.

At that time, the appellant was only 24 years old. No criminal

antecedent is alleged against him. Considering these aspects, the

sentence of four years simple imprisonment imposed on him is clearly

on the higher side. It requires modification. It seems that simple

imprisonment for six months will meet the interests of justice. That

part of the sentence imposing fine is the statutory minimum and the

default sentence shall remain as such.

Subject to the above modification, the appeal is dismissed.

Sd/-

K.HARIPAL JUDGE

DCS/04.03.2021